The Backlash

Although collective cultural rights are included in international human rights law, their precise place and their nature and significance are not well-explored or understood. This paper aims to show where collective cultural rights can be found in international human rights law and explore how these rights fit in the general body and framework of international human rights law. The starting point in this chapter is international human rights law, which implies that the analysis of collective cultural rights is framed by positive law and international legal instruments, such as treaties and conventions, as well as by soft law instruments, such as declarations, recommendations and resolutions. In this paper, the two categories of collective rights and cultural rights are defined, drawing a distinction between a) different types of collective rights, including rights for collectivities as such, rights for individuals as members of collectivities, and rights with a collective interest or object; and b) between different types of cultural rights, including rights that explicitly refer to ‘culture’ and rights that relate to culture or have a cultural dimension. This paper furthermore analyses various contentious issues surrounding collective rights and cultural rights in international human rights law, including the lack of clarity on the object and subject of these rights. The paper then outlines the different forms of collective cultural rights in international human rights law, by providing examples of legal provisions in international human rights law that can be classified as collective cultural rights. Finally, the paper elaborates on how collective subjects and collective cultural interests are integrated in international human rights law and analyses how and to what extent collective cultural rights provisions provide answers to the above-noted issues.

Although collective cultural rights are included in international human rights law, their place and their nature and significance are not well-explored or understood. This chapter aims to classify collective cultural rights in international human rights instruments and to explore how these rights fit in the general framework of international human rights law. In much of the debate on collective rights, cultural rights are used as examples, because cultural rights are rights that clearly demand a collective approach. This chapter provides various examples of legal provisions in international human rights instruments that can be classified as collective cultural rights to show the different forms these rights may take. Collective cultural rights in international human rights law are challenged by different contentious (legal) issues. For instance, there is a lack of clarity concerning the object and the subject of collective rights and the possible tension between collective rights and individual rights. The inclusion of collective cultural rights in international human rights law reaffirms the importance of collective (cultural) interests and collective subjects, but does not provide clear answers to all these issues. The two central components of collective cultural rights, namely ‘community’ and ‘culture’, remain difficult to define. Moreover, they are not static notions, which makes their translation into substantive rights to be invoked and enjoyed by individuals and communities a complex matter.

Embracing Diversity

Over the last decade, under the auspices of the Human Rights Commission, indigenous peoples have been associated by the United Nations (UN) to the negotiations concerning the draft Declaration of the Rights of Indigenous Peoples. Even though the whole story started with the mobilisation of Northern, Central and South Amerindian organisations, which remain extremely active, indigenous representatives are now coming from all over the world to participate in the annual sessions. Known to be an aspirational document, equivalent to the universal declaration of the Human Rights and able to protect indigenous collective rights, the declaration is to be adopted through the formation of a consensus. Nothing has been adopted yet, and the controversies regarding the language of the declaration, as well as the oppositions between state and non-state actors, demonstrate that the international identification of a people and the definition of collective human rights remain difficult. However, in the last three years a series of changes concerning the development of indigenous issues have been observed, both in the UN’s Working Group on the Draft Declaration (WGDD) and on the national and regional stages where constitutional changes (South America) and a reflection on the definition of indigenous issues (Africa, Asia) are being introduced. Based on the participant observation of the process held in the UN, the following deals with the politics of negotiation and analyses the positions of the different actors involved and their impact on the development of the world indigenous movement.

Goal: substantiation of the necessity of normative and legal consolidation of collective human rights. Methods of research: analysis and study of international legal documents that contain provisions on collective human rights. Results: the normative and practical utility of consolidating collective human rights into international legal acts. Collective rights are not individual, as they belong to groups, collectives, peoples as a whole. These rights have certain characteristics that distinguish them from the rights of individuals and which allow us to see their qualitatively different legal nature, and not just «collective aspects». The use of collective rights is based on the subordination of the subordination of the minority to the majority, the exercise of individual rights occurs at the discretion of the individual. As practice shows, individual rights can not provide adequate protection for individual social collectives. Individual human rights do not provide adequate protection of the rights of indigenous peoples in respect of the territories that these peoples traditionally occupy. The customary ownership (individual right) of land has little in common with that age-old bond that connects, for example, the Indian tribe with a certain territory. The identity of indigenous peoples, their culture include the land on which they live. Therefore, it would be a dangerous delusion to try to regulate the relations associated with this land, the standard rules on the right of ownership. Collective rights belong to a group of individuals, united by some objective characteristics. Collective rights belong to the group as a whole, therefore its individual members can neither exercise nor protect these rights, unless they are authorized by the group itself. Discussion: proposal inclusion of this issue in the agenda of international organizations.

INTRODUCTION The enforcement of transnational social rights in international and national legal orders is a pivotal issue for the development of and respect for these rights. Individual and collective human rights are a serious matter as they concern the obligations of states to individuals, and the right to food does, moreover, address a fundamental human need. Social human rights, as second generation human rights, and, as such, situated at the cross-roads between individual and collective rights, are like the classic first generation ones directed vertically at the respective public body, to wit, the state. Thus, it is the task of states to give these rights the proper effect within their national jurisdictions. Moreover, the distinction between several generations of human rights should not lead to their division. All human rights are, in the words of the 1993 Vienna Declaration on Human Rights, “universal, indivisible, interdependent and interrelated”, and the drafting of two different, yet interrelated, Covenants on the subject-matter should not lead to a different conclusion. The original proposal of the Human Rights Commission was a single document entailing civil and political as well as economic, social and cultural rights, which were subsequently split up in separate documents due to political pressure. Even after the split, the United Nations General Assembly, in its decision on the two Covenants, the International Convention of Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), stressed that the two sets of rights are “interconnected and interdependent”, and the respective preambles of the Covenants pay regard to both sets of rules as well. The division between the two sets of rules seems to be artificial and should not be pursued further than absolutely required by law. Tribute should also be paid to the aspect that individual civil and political human rights are not limited to the sphere of the ICCPR, but have, due to their interconnectedness, a collective dimension as well. Even the European Court of Human Rights stressed that “no water-tight division” is possible between the individual rights enshrined in the European Convention on Human Rights and the collective ones of the European Social Charter.

Current debates on decentralization and revitalization in Indonesia are closely linked to discourses on individual and cultural human rights: local or indigenous people claiming rights based on their cultural roots, migrants claiming equal individual human rights as Indonesian citizens, and refugees referring to both their human right to protection and their cultural right to return to their ancestral land. Individual human rights and their collective counterpart, cultural rights, will be two of the hardest touchstones for the cultural turn in peace research and are the central theme of this chapter. The contrasting claims of indigenous people, migrants, and refugees in Maluku clearly show the dilemmas arising out of the granting of, on the one hand, cultural rights — one important outcome of decentralization and the adoption of an international discourse on collective human rights in Indonesia — and the granting of individual human and equal citizenship rights, on the other. Whereas every Indonesian citizen can claim the latter, only some can claim collective rights for local polities, which results in multiple citizenship, the essentialization of culture, and the exclusion of cultural outsiders.

Women represent a large part of the 2.5 billion people who depend on lands managed through customary, community-based tenure systems and are especially reliant on commons for their lives and livelihoods. They have very often limited and unsecured access to land and natural resources and tend to be excluded from decisions concerning them. Far from representing a homogenous group, they face varying challenges that are the result of multiple and intersecting forms of discrimination, whereby gender dynamics intersect with other characteristics, such as age, disability, ethnic origin, or socioeconomic status. Peasant and indigenous women, in many instances, face the compounded impact of the lack of recognition and violation of the collective rights of their communities, which is often the legacy of histories of colonization, conquest, dispossession and discrimination, and patriarchal norms, exacerbated by neoliberalism and the commodification of land and natural resources. The nexus between individual and collective rights is one of particular importance, but has received limited attention, including as regards the gendered effects of human rights violations of collective rights. In the present article, the nexus between collective and individual rights of peasant and indigenous women is illustrated by considering the experience surrounding the recognition and implementation of collective rights to land in Sub-Saharan Africa and the impact on women's right to land. The article argues that peasant and indigenous women's right to land is best protected through interventions aimed at guaranteeing both their collective and individual rights. There is a need to take into account and address simultaneously the barriers that indigenous and peasant women face with regard to their collective as well as their individual rights. These barriers include those ascribed to the discrimination and social, economic and political marginalization suffered by their peoples and communities, as well as those related to patriarchal power structures within and outside them. Addressing these barriers requires the respect, protection and fulfillment of both collective and individual human rights of women and a careful analysis of the interaction between these rights.

The Quest for Information Privacy in Africa

In imagining a realistic utopia for human rights compliance it is not enough to stress independent non-governmental organizations (NGOs), judicial training, treaty monitoring, periodic reviews, and national protection systems to hold governments accountable. Violence which emanates from beyond the state and which often has transnational dimensions also needs to be addressed. This is violence brought about by: private security companies; companies entrusted with public functions such as water supply or guarding detainees and prisoners; clothing manufacturers relying on sweatshop conditions and union free zones; rebel groups and armed gangs operating; and some activities of international organizations. To carry out effective monitoring, a combination of transnational and national NGOs are crucial. Furthermore, there is a need for a World Court for Human Rights. The Court would: encompass all human rights, including subsistence rights, collective rights, and the welfare rights that are central to addressing inequality; transnational actors would be both plaintiffs and defendants; and as the key to future protection lies in access to justice at the national level, the proposal for the World Court recognizes that, in thinking about human rights compliance, we need to take into account a multiplicity of priorities, actors, and national systems.

ABSTRACTRecent discussions of a ‘welfare rights’ approach in social work have suggested that the European Convention on Human Rights might provide a useful framework, a list of service objectives against which present provision might be assessed. In the present paper the author argues that the United Nations Universal Declaration of Human Rights is to be preferred, because of its inclusion of social and economic rights. However, there are philosophical and political objections to such a wide-ranging list of human rights. The author attempts to answer these objections in order to release the Universal Declaration as a viable framework for a welfare rights approach.

Welfare Rights and Social Policy provides an introduction to social policy through a discussion of welfare rights, which are explored in historical, comparative and critical context. At a time when the cause of human rights is high on the global political agendathe authorasks why the status of welfare rights as an element of human rights remains ambiguous. Rights to social security, employment, housing, education, health and social care are critical to human well-being. Yet they are invariably subordinate to the civil and political rights of citizenship, they are often fragile and difficult to enforce, and because of their conditional nature they may be implicated in the social control of individual behaviour.

It is argued that the encompassing concept of welfare rights that is contained within the Social Policy literature – and which has developed from TH Marshall's distinction between civil and political rights on the one hand and social or welfare rights on the other – provides a clearer and more explicit basis for an international call for the progressive development of social policies than, for example, the human rights approach to poverty reduction currently espoused by the UNDP and OHCHR. Social rights continue to be a relatively marginalised or qualified element of the human rights agenda and may be more effectively harnessed by way of a welfare rights approach based on a politics of needs interpretation.

There is an enormous range of contemporary and rapidly expanding literature on human rights that pervades almost every area of human life. This entry cannot do justice to all of these areas and would inevitably fail to cover all aspects of the philosophy of human rights. Here, the goal is more modest: offering a primary overview of the thorny literature and many vital human rights issues that can become increasingly complex and muddled. The concept of human rights, however, came to particular prominence in the twentieth century after World War II, due to the atrocities (e.g., genocide against the Jews) committed by the Nazis. Since then, the idea of human rights has become profoundly influential in many different fields such as ethics, applied ethics, political philosophy, political sciences, law, international law, medicine, and public health. This has led to the formation of a new area in philosophy called “the philosophy of human rights.” The very idea of human rights, however, is older and can be traced back to early religious ideas and the notion of natural rights in Antiquity and the Middle Ages. Generally speaking, human rights are primarily universal moral norms that bind all people in all places at all times independently of any legal recognition. Whether there is a widespread agreement that all human beings have human rights simply because they are human beings is a matter of debate. However, there is currently no common ground with regard to the moral and legal justification or the ontological and epistemological status of human rights. Human rights are primarily universal moral rights and, secondly, international legal rights observed and enforced by nation-states. Despite major caveats concerning the theoretical foundations of human rights, most scholars nonetheless hold the view that there is a vital consensus on the practical importance of human rights. The Universal Declaration of Human Rights (1948) (cited under Modern Documents), is the most important human rights document and contains at least seven groups of basic rights: security rights, due process rights, liberty rights, political rights, equality rights, social welfare rights, and group rights.

The proposed Saami Rights Convention reflects a trend within international law and some national legal systems to give more serious attention than before to the interplay between collective and individual rights. It reflects the challenges of multiculturality and the multitude of identities that individuals may possess, and also the need for carving out space for collective rights in order to do justice to existing differences between individuals. Rights of indigenous peoples figure as an important theme in the international discourse on human rights. Firstly, they do constitute a theme in the international discourse on human rights. Secondly, indigenous peoples' rights carry the message of not only individual but also collective rights, or at least certain collective rights, being human rights. A third challenge relates to the recognition of indigenous peoples as peoples among peoples, putting into question the role of the nation state as a cornerstone of modern constitutions. Keywords: collective rights; cultural rights; human rights; indigenous peoples; individual rights; international law; multiculturality; national legal systems; Saami Rights Convention